16171: (Hermantin) Sun Sentinel-Critics say faulty INS procedure often lands children i (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: leonie hermantin <lhermantin@hotmail.com>

Critics say faulty INS procedure often lands children in adult jails

By Tanya Weinberg
Staff Writer
Posted July 21 2003

The Haitian refugee says he is 16. His uncle in Dania Beach swears it is
true. A birth certificate backs them up. But a dentist says otherwise, and
Kenier Tima remains in an adult jail in Louisiana.

"He's only 16, he's supposed to go to school. He can't. I'm very worried
about him," Tima's uncle, Ynerve Remy, 45, said. "I don't know why they keep
him so long; they treat him just like a criminal."


Tima is one of an untold number of unaccompanied teens who have been
transferred to adult jails based on dental and bone X-ray analyses,
controversial techniques the immigration service uses to determine age. If
officials had accepted Tima's claim to be 16, he likely would have been sent
to the Boystown youth shelter in Miami-Dade County, with classes, recreation
and a Creole-speaking staff. Later, he may have been released to his uncle's
custody.

Instead, he pursues what could be a lengthy asylum process from an adult
jail 650 miles away.

Experts say age estimates based on dental or bone development have a margin
of error of more than two years in each direction and do not take into
account racial and cultural factors that could skew results even more.

Dr. Jeffrey Eisner, the Miami-Dade dentist who evaluated Tima's X-ray for
the federal government, included no margin of error when he estimated Tima's
age at 18. He said he had no idea about the impact of that number.

"At best it's a guesstimate," Eisner said.

Dr. Nelson Ferraro, an oral and maxillofacial surgeon at Children's Hospital
of Boston, has challenged the government's use of the age determination
tests. Ferraro says the tests impart an unwarranted scientific legitimacy to
administrative decisions. Age cannot be determined from anything in the
body, Ferraro, a dentist and physician, said.

"It is not possible to count rings on a human being as if dating the
longevity of a tree," he said.

One method used by immigration officials is a technique surgeons like
Ferraro use to assess skeletal maturity. An X-ray of the hand and wrist is
analyzed to determine the extent the bones and cartilage have fused. The
other method looks at the wisdom teeth and their root development.

While people on average may be 18 when their wisdom teeth come in, many are
16, Ferraro said. His own daughter was 14.

"If she had got in the clutches of someone trying to judge her age and
decide whether she would go to an adult or juvenile facility, she could've
wound up on the wrong side of the fence," Ferraro said.

Not just X-rays

John Pogash, the top juvenile affairs official at the Homeland Security
Department's Bureau of Immigration and Customs Enforcement, said officials
consider other factors besides X-rays -- such as what detainees tell
authorities and documentation obtained from detainees, their relatives or
their home country.

"We all know it's not an exact science," Pogash said. "That's why the dental
or forensic is not meant to be a sole indicator of age."

Advocates have their doubts. Attorney Meagan Tuohey-Kay of Catholic
Community Services of Newark, N.J., represented a Ghanaian youth who claimed
to be 16 but was put in an adult detention center after a dentist said he
was over 18.

Tuohey-Kay said she obtained a birth certificate and immunization records
from Ghana that established the boy was 16. She also submitted an affidavit
from the chair of pediatric dentistry at the University of Medicine &
Dentistry of New Jersey who had studied wisdom tooth eruption in Ghana and
concluded that the average Ghanaian is 16 when the teeth come in.

It was not enough. Because the Homeland Security Act transferred custody of
unaccompanied minor immigrants away from the immigration authorities seeking
to deport them, Tuohey-Kay appealed to the new guardians to step in. But the
Office of Refugee Resettlement sided with Homeland Security officials
without ever visiting her client, she said.

"Their faulty science completely overrode any other evidence ... They never
even said, `This looks fraudulent'; they just said, `You didn't submit
additional corroborating evidence,'" Tuohey-Kay said.

The young man had claimed he was abandoned in Ghana and might have applied
for a special immigrant juvenile visa for abandoned, abused, and neglected
children. Because of the age determination, he was ineligible and was
deported several weeks ago.

Once considered 18 or older, unaccompanied children lose the protections of
a 1997 federal court settlement that mandates appropriate juvenile services
and release to the custody of a relative whenever possible.

Review promised

Officials say they turn to dental or wrist-bone analysis because they do not
want to put adults and children in detention together. Refugees often enter
the country without documents. Others carry false or suspect papers. Young
people of all nationalities are subject to testing and, often, subsequent
incarceration in adult jails.

"The people in the field do the best they can to make an appropriate
decision," Pogash said.

Advocates agree that housing children and adults together should be avoided
but suggest that those whose age is in doubt be housed together in lieu of
accurate testing.

Last year, the since-reorganized Immigration and Naturalization Service told
Congress it would review its practice of, and look for alternatives to,
using the dental and wrist techniques. Seventeen months later, immigration
authorities say they do not track the number of detainees they X-ray for age
determination.

Recent reports by Amnesty International and Physicians for Human Rights slam
the continuing process, which advocates say is common. About 5,000
unaccompanied children come into immigration custody each year.

Tima arrived in South Florida on a Haitian refugee boat in February. His
uncle says his nephew stopped calling after the teen was transferred from
the local adult detention center to the New Orleans jail in April.

Attorney Lisa Frydman said she obtained birth certificates from Haiti
showing that both Tima and a boat mate, Richemond Joseph, were 16. But a New
Orleans deportation officer told her the teens' parents in Haiti would have
to travel to the American embassy to provide further evidence, Frydman said.

"It's pretty complicated, because Haitians cannot easily access the U.S.
embassy in Haiti," Frydman, of the Florida Immigrant Advocacy Center, said.

Changes pending

The two teens have a new pro-bono attorney in New Orleans who said Joseph is
too confused, depressed and scared to talk much when she visits. Tima tries
to put on a brave face, Catholic Charities attorney Mary Brandon said.

"But if you talk to him a little while, he starts to break down," she said.
"He'll say, `I never thought coming here would be like this; nobody ever
told me they'd put me in prison.'"

The pending Unaccompanied Alien Child Protection Act of 2003 would require
Homeland Security officials to consult with the refugee office whenever a
detainee claims to be under 18. It also would prohibit officials from using
X-ray analysis alone to determine age and allow immigrants to appeal any age
determination to an immigration judge.

For now, Kenier Tima and Richemond Joseph face what could be an extended
detention in adult jail. Their attorney worries about how they will cope.

"There's nobody to talk to, nobody speaks your language, there's nobody your
age, and you're locked up with 700 adult men," Brandon said. "You just don't
put kids in adult prisons. Their needs are different. That's why we have
things like juvenile courts."

Tanya Weinberg can be reached at tweinberg@sun-sentinel.com or 305-810-5029.



Copyright © 2003, South Florida Sun-Sentinel

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